The University of California’s library system has been one of Google’s scanning partners. Now another part of the Cal system—the members of its Academic Council—have written a letter to the court expressing concerns about the settlement. (Please don’t ask me to explain the precise role of the Academic Council within the byzantine Cal administration.)

The specific critiques will not be surprising to anyone who’s been following the debate about the settlement. Instead, this is a case in which the letterhead matters; the letter is signed by every last one of the faculty members of the governing body of one of the largest university systems in the country. Due to political reasons only hinted at in the letter, they write only in their personal capacities as professors, but in another sense, that makes the unanimity all the more striking. Anyone who’s worked in academe will attest to the difficulty of herding this many cats.

Here’s the summary paragraph:

We have three main concerns about the proposed settlement agreement. First, to maximize access to
knowledge, prices should be reasonable. Unfortunately, the proposed settlement agreement contains
inadequate checks and balances to prevent price gouging and unduly restrictive terms for purchasers
of books and institutional subscribers. Second, the agreement does not contemplate or make
provision for open access choices that have in recent years become common among academic
authorial communities, especially with regard to out of print books. The settlement agreement only
contemplates that authors would monetize their books and related metadata through the Book Rights
Registry (BRR). This is especially worrisome as to the millions of out of print, and likely orphan,
books. Third, the agreement contemplates some monitoring of user queries and uses of books in the
Book Search corpus that negatively impinge on significant privacy interests of authors and readers
and undermine fundamental academic freedom principles.

I found the letter’s discussion of possible responses to pricing abuses particularly interesting:

There are a number of ways that this court could contribute to guarding against the grave risks of
future price gouging and other unreasonable terms. One would be to retain jurisdiction over this case
so that there would be opportunities for judicial review of the agreement insofar as it resulted in
price gouging or other unreasonable terms. The court also could appoint a special master to hear
such complaints. A second would be to extend the existing arbitration of disputes provision (Article
IX of the settlement agreement) so that institutional subscribers could have a venue for arguing that
prices or terms are unreasonable. We are encouraged by the announcement that Google’s agreement
with the University of Michigan libraries gives the libraries the right to submit pricing disputes to
independent arbitration. A third would be to insist that the agreement be amended to omit the “most
favored nation” clause, thus ensuring more robust competition. A fourth would be to supplement the
agreement with provisions requiring that academic authors be represented on the BRR governing
body. A fifth would be to require the parties to devise and implement better ways to reset prices than
a metric that focuses on hypothesizing prices for similar services or products that don’t exist. A sixth
would be to amend the agreement so that “unclaimed” funds from public domain and orphan books
and books whose owners have not registered with BRR would be used to reduce institutional
subscription prices rather than being given to BRR registrants and to nonprofit organizations for
purposes of promoting literacy. This last suggestion is a particularly useful example of how the
current settlement agreement does not adequately represent the interests of academic authors. As
authors, we rely on our ability to use UC’s libraries to do our work. We would strongly prefer that
UC’s libraries pay lower fees for institutional subscriptions rather than paying in to funds that the
BRR will give to people who do not own rights to the books in question or to charities who may not
be members of the author sub-class.

I particularly like the last proposal; it fits with my belief that the best way to deal with funds that remain unclaimed after however many years is to issue refunds. Interestingly, the letter’s view that unclaimed funds should be used to reduce subscription costs arguably finds some support in the provisions of the settlement that allow the Registry to use unclaimed funds to pay its own expenses. It’s possible to argue that using unclaimed funds to pay operating expenses creates cost savings that could be passed along to subscribers. (It’s also possible to argue that the savings will be passed back to the copyright owners instead. The actual economic analysis is tricky, and I haven’t attempted it with any rigor.)

The letter’s second main head—open access—seems to have been squarely addressed by Google’s Creative Commons announcement this week. Academic critics of the settlement had a concern, and Google has promised to give them exactly what they asked for. Yay. Everyone wins.

The letter’s final topic—privacy—is one of the hot-button issues for the public-interest community. The EFF is making privacy the center of its settlement-related campaign, and it seems unlikely they’ll be alone in that respect. The letter provides a nice overview of some of the concerns.

It closes with a carefully modulated statement of where they stand on the yes-or-no question before the court:

In concluding this letter, we want to make clear that we are not opposed to the settlement. As we
understand it, the question before the court is whether the settlement is fair to the author sub-class
whose interests will be affected by the settlement. This letter argues that the settlement is not equally
fair to all members of the author sub-class and does not fully address the needs of academic authors.
However, with clarifications requested in our letter, some supplementary provisions to address our
concerns, and other amendments, we believe it would be fair enough to academic authors to be
approved.

The emphasis is mine; the highlighted sentence does a nice job of fitting the authors’ concerns to the legal question before the court. I see the letter as being sincere in its statement of overall non-opposition. It expresses significant, legitimate worries about the settlement, which it raises in a spirit of improving the settlement, rather than one of scuttling it. Read that last quoted sentence again, though, and read it carefully; its implications are … interesting.

Finally, props to the Academic Council for excellent use of a diæresis.